"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Justice” — While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!
Two items from the indomitable Dan Kowalski @ LexisNexis:
“LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”
This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.
Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?
In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.
EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”
The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….
Hon. Dana Leigh Marks Retired U.S. Immigration Judge Past President, National Association of Immigration Judges, Member of The Round Table of Former IJs.
2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”
I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.
. . . .
Sen. Chuck Grassley (R-IA) Official Photo
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Read the full statements of Judge Marks and Sen.Grassley at the links above.
Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.
Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:
Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so. Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say.
Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g., https://youtu.be/MEJ093pDGI4%C2%A0.
In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.
DISCLOSURE: I am a proud retired member of the NAIJ.
On Friday, the New York Times reported that former Virginia attorney general Kenneth Cuccinelli will be tapped for a role in the Trump administration. He will be put in charge of the country’s legal immigration system, as head of U.S. Citizenship and Immigration Services (USCIS). While it had been earlier rumored that Cuccinelli would be placed in a new job as “immigration czar,” both the Times and the Washington Post noted that he now seems set for the top spot at USCIS.
No matter what job Cuccinelli ends up in, he is neither deserving nor qualified to play any role in shaping immigration policy. He is an immigration hardliner with views that are at odds with American values. He has a history of xenophobic, homophobic, and sexist comments. Ironically, one nice thing that can be said about Cuccinelli is that he fosters bipartisanship — he has generated opposition from both sides of the aisle.
Given that Cuccinelli could soon be presiding over USCIS, his comments on immigration are worthy of review. In 2018, he told Breitbart News Daily that states should use “war powers” to turn back migrants: “You just point them back across the river and let them swim for it,” he said. In 2015, appearing on a conservative radio station, he claimed that President Obama was encouraging an “invasion” of undocumented immigrants. In 2012, he compared immigration policy to pest control. He’s called the infamous Rep. Steve King (R-Iowa) “one of my very favorite congressman.” So Cuccinelli is hardly someone who can be trusted to run USCIS in keeping with the agency’s core values, which include “respect” and “integrity.”
Most importantly, Cuccinelli has no significant experience in immigration policy, notwithstanding his failed attempt to end birthright citizenship as a state senator. He is not from a border state, nor has he been a credible voice in the immigration debate. His background is in law enforcement, not immigration law.
Cuccinelli’s prime qualification for his new job seems to be that he has been a tireless defender of the president on cable news. That could almost be seen as laughable if the stakes were not so high. Consider that as head of USCIS, Cuccinelli would wield tremendous power over immigrants like refugees, domestic abuse victims, and asylum-seekers. Or that our legal immigration system is byzantine and complicated, attracting the largest number of immigrants in the world. In FY 2017, the U.S. granted Legal Permanent Resident status to about 1.1 million people, including 120,000 refugees and 25,000 asylum-seekers.
Cuccinelli’s anti-LGBTQ record is especially troubling. As attorney general, he was against policies banning discrimination on the basis of sexual orientation in public colleges and universities. As a state senator, he unsuccessfully fought to criminalize sodomy, calling “homosexual acts… intrinsically wrong.” In 2008, he declared that homosexuality “brings nothing but self-destruction, not only physically but of their soul.” The extreme views matter because LGBTQ people are among our most vulnerable immigrants. The Human Rights Campaign, for example, has documented “the precarious position of transgender immigrants and asylum seekers.” Sadly, it seems unlikely that Cuccinelli would respect their human rights, let alone treat LGBTQ immigrants with kindness and compassion.
There are myriad ways in which Cuccinelli has demonstrated that he is far out of the mainstream, so much so that handing him a huge job would be dangerous. The man who worried about getting his newborn son a social security number because he was concerned about the government tracking his family is probably not the ideal person to put in charge of E-Verify, the federal database that checks employment eligibility.
True, the president can choose whomever he likes for high-level positions. But Cuccinelli isn’t even a smart political pick. In addition to being unpopular with Democrats, he doesn’t have the full support of Republican lawmakers either. According to the website Vox, Sen. Mitch McConnell (R-Ky.) does not want to confirm Cuccinelli (the ill will stems from the fact that Cuccinelli headed up a political action committee that supported primary challenges to incumbent Republicans in 2014). Besides, on immigration most Americans are moving away from Trump. This January, the Pew Center found that 62 percent of Americans believe that immigrants strengthen our country. A restrictionist like Cuccinelli is not what the public wants or needs.
As head of USCIS, Cuccinelli would bring little to the job except a track record as a Trump loyalist. With his outdated and narrow views, he would be a disaster overseeing our legal immigration system.
Raul A. Reyes is an immigration attorney and member of the USA Today Board of Contributors. A graduate of Harvard University and Columbia Law School, he is also a contributor to NBCNews.com and CNN Opinion. You can follow him on Twitter at @RaulAReyes, Instagram: raulareyes1.
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Let’s remember that fired hardliner L. Francis Cissna was the man who “took the ‘Services’ out of US Citizenship and Immigration Services.” His dismal anti-immigrant polices and undermining of public service have brought unprecedented backlogs to USCIS adjudications that are now under Congressional investigation. He also reportedly “tanked” employee morale at USCIS. Nevertheless, he wasn’t quite nasty enough for Trump and his neo-Nazi White Nationalist advisor Stephen MIller.
As a Virginia resident who suffered through “Cooch Cooch’s” disastrous tenure as Attorney General and his thankfully unsuccessful bid to become our Governor, I can testify that he is indeed without any redeeming social values. In other words, a perfect fit for the “Trump Immigration Kakistocracy.” But, “Cooch Cooch” has some powerful enemies in the GOP Senate. He pissed off Senate Majority Leader Mitch McConnell, and powerful Senator Chuck Grassley (R-IA) can’t be too pleased with Trump’s treatment of his former staffer Cissna.
In the meantime, it’s “chaos as usual” in the DHS/USCIS kakistocracy.
Senate Judiciary Committee Chairman Chuck Grassley hit back hard at Attorney General Jeff Sessions on Wednesday after his former Senate colleague launched a preemptive strike on his criminal justice bill.
The legislation, which Grassley has worked on for more than two years, is expected to win committee approval Thursday. But it faces a tough climb to the Senate floor amid reluctance from GOP leaders and conservative resistance. Sessions, who opposed the reform effort during his time on the Judiciary panel, piled on Wednesday with a letter warning that the bipartisan proposal “risks putting the very worst criminals back into our communities.”
Grassley responded with a powerful brushback pitch to the attorney general.
“It’s Senator Sessions talking, not a person whose job it is to execute law, and quite frankly I’m very incensed,” he told POLITICO.
What Sessions’ letter “doesn’t recognize here,” Grassley added, “and why I’m incensed about it is, look at how hard it was for me to get him through committee in the United States Senate. And look at, when the president was going to fire him, I went to his defense.”
The Iowa Republican said “all kinds of” potentially polarizing Justice Department nominees who have proven “very difficult to get through the United States Senate” have also landed in his lap as chief of the influential Judiciary Committee.
“If he wanted to do this,” Grassley said of Sessions, “he should have done what people suggested to him before: resign from attorney general and run for the Senate in Alabama again. We’d have a Republican senator.”
Grassley was referring to the special election for the Senate seat Sessions vacated to become President Donald Trump’s attorney general. Sen. Doug Jones (D-Ala.) ultimately won after multiple allegations of sexual misconduct with minors against GOP nominee Roy Moore. Republican leaders considered asking Sessions to join the race as a write-in candidate in a bid to save the seat for their party. Sessions has also had a tumultuous time in the Trump administration, at one point reportedly offering his resignation.
The criminal justice bill, which Grassley negotiated alongside Minority Whip Dick Durbin (D-Ill.), counts co-sponsorship from 18 other senators, evenly distributed between the parties. Senate Majority Whip John Cornyn (R-Texas), who supported the broader reform effort in the previous Congress, has shifted his focus this year to a narrower prison reform measure that he has said has a better chance of Trump signing into law.
But Grassley hasn’t abandoned the push to win floor time for the legislation, which would ease mandatory minimum sentences for certain non-violent offenders and end the required life sentence for some repeat drug offenders. Other elements of the proposal would create new mandatory minimum sentences for other categories of offense and bolster punishment for those convicted of trafficking in drugs containing the opioid fentanyl.
Grassley disputed Sessions’ characterization of the criminal justice reform bill in his Wednesday letter as bringing “potentially dire consequences” for efforts to fight the nationwide opioid epidemic.
“I agree with Sessions that mandatory minimums are important, and we don’t touch that,” the Iowan said.
Sessions’ critique of the legislation “makes it sound like these guys are going to be out on the streets as soon as the judge makes the decision,” Grassley added. “So he can have his strong position, and I can have my position that brings a little bit of fairness to it.”
Grassley also tweeted his frustration with Sessions Wednesday. Asked for a comment, a Justice Department spokeswoman said the letter from the attorney general would suffice.”
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The chickens come home to roost, Chuckles! Implied, if not actually stated by Grassley, is that Gonzo lied under oath about more than his Russian connections during his confirmation hearings.
Gonzo falsely claimed that he would leave the partisan role of the extreme rightist Senator from Alabama behind and recognize that the role of U.S. Attorney General involved fairly and impartially representing the diverse interests of all Americans. I actually gave him the “benefit of the doubt” on that one.
But, Gonzo quickly established beyond any reasonable doubt that he could not leave behind a lifetime of racism, xenophobia, White Nationalism, and lies. He continues to be the same “shill” for racist restrictionist hate groups that he always has been.
Yup, Chuckles! Gonzo’s disdain for bipartisanship, reasonable compromise, equal treatment, and sane delivery of justice runs deep. Perhaps you should have “done the right thing” during the confirmation process!
The good news: by the time Mueller gets through, Gonzo might well wish that he had eased off a little on Chuckles’s proposal to revise sentencing for “nonviolent” offenses — like perjury, obstruction of justice, or providing false or misleading information. He’ll have to hope that his mouthpiece “Chuckie” Cooper can help him beat the rap for his “bad memory.”
“Lee Francis Cissna, President Donald Trump’s nominee to head the federal agency that handles applications for visas, refugee status, and citizenship, has put little on the public record in his 20 years as a lawyer, government employee, diplomat, and Capitol Hill aide.
But it turns out he has left many clues about how he could reverse Obama-era policies if he becomes director of United States Citizenship and Immigration Services, a non-enforcement arm of the Department of Homeland Security.
On Wednesday, May 24th, Cissna, 50, who has worked on immigration policy at Homeland Security for much of his career, is scheduled to appear at a confirmation hearing chaired by Senate Judiciary Committee Chairman Charles Grassley. From 2015 until earlier this year, Cissna worked for Grassley on immigration issues, having been detailed to his staff by Homeland Security. During that time, he remained on the agency’s payroll.
While there, he drafted dozens of letters under the senator’s name to Homeland Security officials, helping Grassley, an Iowa Republican, to intensify his oversight of immigration and creating a blueprint for dismantling President Barack Obama’s initiatives, according to a dozen current and former agency and congressional staff members.
ProPublica reviewed more than 60 of the letters sent by Grassley during the time Cissna worked in his office. Among the policies they criticized were:
An emergency program for Central American children to reunite with parents in the U.S. The system “unquestionably circumvents the refugee program established by Congress,” according to a November of 2015 letter.
The system for granting asylum to people claiming persecution in their home countries. A November of 2016 letter claimed thousands of immigrants were “amassing” in Mexican border cities with the intention of “asserting dubious claims of asylum, which will practically guarantee their entry.”
Giving so-called “Dreamers”—undocumented immigrants brought to the U.S. as children—the chance to obtain travel documents on top of work permits. This program would “open the door to undocumented immigrants to gain U.S. citizenship,” a March of 2016 letter said.
A program allowing undocumented immigrants who are victims of crime to stay in the U.S. even if there are no visa slots available. A December of 2016 letter said the policy is “being exploited by those wishing to defraud the system and avoid deportation.”
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Dude seems to oppose many of the best things that USCIS has done to improve the immigration situation. Also appears that like Senator Grassley he has a habit of repeating largely “fact free” restrictionist, white nationalist dogma. Grassley is right on a few things (allowing cameras in court is one of them) but none of the items mentioned in this article.
